part 3 - special cases

• Professional Negligence


  Negligence may occur within a situation in which a specific skill or ability, linked to a specific profession, is offered. Often revolved around the specific profession which then influences the scope of a duty of care and how breach of duty is dealt with.
• Caparo v Dickman


  Case establishing standard of care for professional negligence
• Determining whether duty of care has been breached


  1. Conduct of the professional is judged against the standard in their profession

  2. Usual practice in the profession will become important (but not necessarily decisive)

  3. Demonstrate that no professional man would follow the course taken by the defender, if acting with ordinary care
• Hunter v Hanley


  Establishes three-part test to establish medical negligence
• Bolam v Friern Hospital Management Committee

  "A man need not possess the highest expert skill"
• Gordon v Wilson


  Differing bodies of opinion
• Honisz v Lothian Health Board


  Case on medical negligence
• R v Bateman


  Case on medical negligence
• Inexperience does not lower standard of care
• Wilsher v Essex Area Health Authority


  Case on medical negligence and inexperience
• Sidaway v Bethlem Royal Hospital Board of Governors


  Case on medical negligence
• Contract law and delict


  Where there is a contractual relationship, pursuer can take action in both areas
• JG Marting Plant Hire Ltd v Macdonald


  Case on contract law and delict
• Professionals subject to the Unfair Contract Terms Act 1977 – unable to exclude liability for personal injuries or death arising from a breach of duty
• Negligence Misstatements and Advice


  Relationship between the parties in these cases may involve provision of advice. Cautious because there is potential for claimants – strict with proximity and claimant.
• Hedly Bryne & Co Ltd v Heller & Partners Ltd


  Case on negligent misstatements and advice
• Can be recoverable of economic loss without damage to property
• Relying on Advice or Statements


  Mere foreseeability will not be sufficient. There's a need to establish reliance on defender's statement
• Galoo Ltd v Bright Graham Murray


  Case on reliance on advice or statements
• Goodwill v British Pregnancy Advisory Service


  Case on reliance on advice or statements
• McFarlane v Tayside Health Board

  Case on reliance on advice or statements
• Assumption of Responsibility for Statements


  Reliance on misstatements and the assumption of responsibility for the accuracy of statement on the part of a defender
• Steel v NRAM


  Case on assumption of responsibility for statements
• Professional Services


  Hedly Byrne criteria – Henderson v Merrett Syndicates Ltd. Assumption of responsibility is not only for statements but also provision of services.
• Medical Negligence


  Duty of care. Medical negligence takes money out of public area – wasting limited resources.
• Caparo v Dickman


  Case establishing duty of care in medical negligence
• Barnett case


  Duty of care imposed once doctor has assumed responsibility for patient
• Breach of duty


  Relates to standard of care. Reference to the reasonable person exercising the ordinary skill for that profession.
• R v Bateman


  Case on standard of care in medical negligence
• Wilsher v Essex Health Authority


  Novice standard of care in medical negligence
• Standard of care mirrors the professional standard
• Hunter v Hanley


  Test for standard of care in medical negligence
• Bolam


  Standard of care is "ordinary care"
• Bolitho


  Case on standard of care in medical negligence
• Montgomery


  Case on information disclosure and informed consent in medical negligence
• McCulloch v Forth Valley Health Board


  Case on standard of care in medical negligence
• Causation


  Must be proven that breach caused the injury in LAW and FACT
• Factual causation


  The "but for" test
• Barnett


  Case on factual causation in medical negligence
• Causation will be proven where the breach made a material contribution to the injury OR where breach amounted to a material increase to the risk of injury